Gottlieb v. Wiles

150 F.R.D. 174, 1993 U.S. Dist. LEXIS 9397, 1993 WL 246437
CourtDistrict Court, D. Colorado
DecidedJune 25, 1993
DocketCiv. A. No. 89-M-963
StatusPublished
Cited by15 cases

This text of 150 F.R.D. 174 (Gottlieb v. Wiles) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gottlieb v. Wiles, 150 F.R.D. 174, 1993 U.S. Dist. LEXIS 9397, 1993 WL 246437 (D. Colo. 1993).

Opinion

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

Following the entry of the order of November 27,1992, approving the settlement of this class action under F.R.Civ.P. 23(e), the applications for attorneys’ fees and expenses were referred to United States Magistrate Judge Bruce D. Pringle, sitting as a special master under F.R.Civ.P. 53. The special [178]*178master’s report was filed January 4,1993. A hearing on objections was held on April 16, 1993. Under F.R.Civ.P. 53(e), the court must accept the special master’s findings of fact unless clearly erroneous. That rule also provides that the court may adopt the report, modify it or reject it in whole or in part. The special master’s report does not contain separately stated findings of fact and conclusions of law. The court has the record from the hearings held by the special master on October 28, 1992, December 18, 1992, and December 29, 1992. The court also has direct personal knowledge of this case, the other cases involved in the global settlement agreement and related litigation in this court. As will be observed, the relationship of those cases is important in considering these fee applications. While there is no basis for rejecting any finding of fact as clearly erroneous and although the objectors have not challenged any of the factual findings as contrary to the record, a more complete statement of undisputed facts is necessary to establish an appropriate context for determining the issues now to be resolved.

The collapse of MiniScribe Corporation resulted in the filing of many securities cases in this and other courts. Four principal cases were developed as coordinated actions in this court: this case, Gottlieb, et al. v. Wiles, et al., 89-M-963; Connolly v. Hambrecht & Quist Group, et al., C.A. No. 91-M-170, brought by the MiniScribe bankruptcy trustee; Standard Chartered Bank v. Coopers & Lybrand, et al., C.A. No. 91-M-408;1 and, ELLCO Leasing Corp. v. Coopers & Lybrand, et al., C.A. No. 91-M-930. The bankruptcy trustee’s case was selected for the first trial because it had broader issues and wider impact than the other cases. On the eve of that scheduled trial, a global settlement agreement was achieved, settling all of the above cases.

The special master referred to the settlement as producing a fund of $44,000,000 for the shareholder class. That is somewhat overstated. If the agreement is fully performed, the global settlement fund for the four actions will total $128,100,000. The proportionate share allocated to this case will be $44,000,000. At this time, $22,500,000 is in escrow for this class.2 The remainder of the $44,000,000 due to the class is to be paid in annual installments due May 15 in each of the next three years. The final installment is due May 15, 1996. Thus, while the settlement is expected to provide $44,000,000, nearly half of the money will come from future payments on unsecured promissory notes. The risk of possible insolvency of one or more of the payors and the delay in distribution affect the present value of the settlement agreement to the members of the class. In this sense, the special master’s reference to a $44 million settlement fund is overstated, as well as premature.

The settlement was facilitated by the efforts of Magistrate Judge Bruce D. Pringle in settlement conferences. Counsel for the plaintiffs in all of the cases in the global agreement were participants in the negotiations and settlement process as, of course, were counsel for the settling defendants. The pendency of the other coordinated cases and the efforts of the lawyers representing those other plaintiffs contributed significantly to the resolution of this action. There is no way to measure the contribution of class counsel relative to the other lawyers in achieving the global settlement. It is simplistic to say that a settlement fund of $44,-000,000 was created through the efforts of class counsel.

The special master reviewed the time records submitted by counsel for the class and found that the litigation was managed with efficiency, avoiding duplication of effort. Additionally, the special master reported that lead counsel in the Hill & Robbins firm delegated much of the work to associates with lower billing rates. The special master also found that lead class counsel were well qualified to represent the class in this case. There has been no objection to any of these findings.

[179]*179The law of restitution requires an award of fees and expenses to the attorneys whose legal services create a common fund for the benefit of a class of claimants. Central Railroad and Banking Co. v. Pettus, 113 U.S. 116, 126-27, 5 S.Ct. 387, 392-93, 28 L.Ed. 915 (1885); Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). Historically, attorneys in common fund cases were awarded a percentage of the common fund. Pettus, 113 U.S. at 128, 5 S.Ct. at 393; Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). In 1973, however, the Third Circuit announced the “lodestar” fee calculation method in an attempt to correlate the amount of the fee award with the work done on a case. Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir.1973) (Lindy I). Dissatisfaction with the procedures necessary to calculation of a lodestar has caused courts to return to use of a percentage of fund fee award. See Court Awarded Attorneys’ Fees: Report of the Third Circuit Task Force, 108 F.R.D. 237 (1985). The percentage of fund method allo cates a portion of the common fund for attorneys’ fees, commonly between 20-30% of the fund. See Camden I Condominium Association, Inc. v. Dunkle, 946 F.2d 768, 775 (11th Cir.1991). The “lodestar” determination requires calculation of the number of hours reasonably spent on work necessary to the litigation and appropriate hourly rates for the lawyers performing those services. Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). The product—the lodestar—is presumptively a reasonable fee. Id. at 897, 104 S.Ct. at 1548. That figure may be adjusted by use of a “risk multiplier,” taking into account such factors as risk of nonpayment, delay in payment, or unusual success in results. See Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 483 U.S. 711, 716, 731-36, 107 S.Ct. 3078, 3081, 3089-92, 97 L.Ed.2d 585 (1987) (Delaware Valley II) (O’Connor, J., concurring).

Neither fee calculation method has emerged as clearly preferable to the other, for each method has serious deficiencies. The Tenth Circuit Court of Appeals permits either approach. Brown v. Phillips Petroleum Co.,

Related

Dehoyos v. Allstate Corp.
240 F.R.D. 269 (W.D. Texas, 2007)
Connolly v. Harris Trust Co.
309 F.3d 1234 (Tenth Circuit, 2002)
Chun v. Bd. of Trustees of ERS
992 P.2d 127 (Hawaii Supreme Court, 2000)
Weissman v. Quail Lodge Inc.
179 F.3d 1194 (Ninth Circuit, 1999)
Feinberg v. Hibernia Corp.
966 F. Supp. 442 (E.D. Louisiana, 1997)
Osher v. SCA REALTY I, INC.
945 F. Supp. 298 (District of Columbia, 1996)
McLendon v. Continental Group, Inc.
872 F. Supp. 142 (D. New Jersey, 1994)
Gottlieb v. Barry
43 F.3d 474 (Tenth Circuit, 1994)
In Re Washington Public Power Supply System Securities Litigation. Class Chemical Bank, in Its Representative Capacity as Trustee for Bondholders, and Bernstein, Litowitz, Berger & Grossman Milberg, Weiss, Bershad, Specthrie & Lerach Molloy, Jones & Donahue, P.C. v. City of Seattle Oregon Public Entities, Benton Rural Electric Association, Washington Washington Public Power Supply System R.W. Beck and Associates Ebasco Services Incorporated United Engineers & Constructors, Inc. Director Participants' Committee Public Utility District No. 1, of Klickitat County United States of America, on Behalf of Itself and Its Agency, the Bonneville Power Administration State of Washington Bonneville Power Administration, Class and Lawrence Laub v. Continental Assurance Company v. City of Seattle Oregon Public Entities, Benton Rural Electric Association, Washington Washington Public Power Supply System R.W. Beck and Associates Ebasco Services Incorporated United Engineers & Constructors, Inc. Director Participants' Committee Public Utility District No. 1, of Klickitat County United States of America, on Behalf of Itself and Its Agency, the Bonneville Power Administration State of Washington Bonneville Power Administration, Class and Continental Assurance Company v. Berger & Montague, P.A. v. City of Seattle Oregon Public Entities, Benton Rural Electric Association, Washington Washington Public Power Supply System R.W. Beck and Associates Ebasco Services Incorporated United Engineers & Constructors, Inc. Director Participants' Committee Public Utility District No. 1, of Klickitat County United States of America, on Behalf of Itself and Its Agency, the Bonneville Power Administration State of Washington Bonneville Power Administration
19 F.3d 1291 (Ninth Circuit, 1994)
Class v. City of Seattle
19 F.3d 1291 (Ninth Circuit, 1994)
Fed. Sec. L. Rep. P 98,510
43 F.3d 474 (Tenth Circuit, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
150 F.R.D. 174, 1993 U.S. Dist. LEXIS 9397, 1993 WL 246437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gottlieb-v-wiles-cod-1993.